NAMIBIA Law and Practice Contributed by: Nadine van Schalkwyk, Ralph Strauss, Bonita R de Silva, Ivo dos Santos, Chrissie Turck, Jané Louw, Nicole Freygang and Natasha Nekuta, Dr. Weder, Kruger & Haikali Inc.
trustees or to appoint the majority of the trustees or to appoint or change the majority of the benefi - ciaries of the trust; • (vi) in the case of a close corporation, owns the majority of the members’ interest or control directly or has the right to control the majority of members’ votes in the close corporation; or • (vii) has the ability to materially influence the policy of the undertaking in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control referred to in para - graphs (i) to (vi). Accordingly, the concept of “control” under the Com - petition Act is broad and may extend beyond majority shareholding or formal ownership rights. The notification and prior approval obligation does not apply to a merger if: • the annual turnover in, into or from Namibia, of the transferred undertaking is equal to or valued below NAD15 million; and • the asset value of the transferred undertaking in Namibia is equal to or valued below NAD15 million. If the NAD15 million thresholds described above are exceeded, a proposed merger may still be exempted if: • the combined annual turnover in, into or from Namibia of the acquiring undertaking and trans - ferred undertaking is equal to or valued below NAD30 million; • the combined assets in Namibia of the acquiring undertaking and transferred undertaking are equal to or valued below NAD30 million; • the annual turnover in, into or from Namibia of the acquiring undertaking plus the assets in Namibia of the transferred undertaking are equal to or valued below NAD30 million; and • the annual turnover in, into or from Namibia of the transferred undertaking plus the assets in Namibia of the acquiring undertaking are equal to or valued below NAD30 million. Both thresholds must be met for the exemption to apply.
For purposes of the merger exemptions above, the “acquiring undertaking” includes: • (i) any undertaking that would, as a result of the transaction, acquire or establish direct or indirect control over the whole or part of the business of another undertaking; • (ii) any other undertaking that has direct or indirect control over the whole or part of the business of an undertaking referred to in paragraph (i); and • (iii) any other undertaking that is controlled by, or direct or indirect control over the whole or part of its business is held by, an undertaking referred to in paragraph (i) or (ii); and the “transferred under - taking” includes any undertaking, or the business or assets of the undertaking, that as a result of a transaction: (a) would become controlled by another undertak - ing; and (b) any other undertaking that is controlled by, or the direct or indirect control over the whole or part of its business is held by, an undertaking referred to in paragraph (i). The methodology for the valuation of assets and cal - culation of annual turnover for purposes of the merger exemptions has been prescribed by a determination issued by the applicable minister. Accordingly, parties to mergers and acquisitions involving Namibian businesses should carefully assess whether a transaction constitutes a notifiable merger under the Competition Act prior to implementation. 6.2 Merger Control Procedure The conclusion of the formal transaction documents/ agreements is not a prerequisite for the submission of a merger notification. The parties to an intended merger may submit other documentation or informa - tion which sufficiently sets forth the intended merger. The submission for merger approval requires each undertaking participating in the intended transaction to participate in the preparation of the prescribed forms (being Forms 38 and 39), a competitiveness report and relevant supporting documents and infor - mation relating to the intended transaction.
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